The Office of the Information Commissioner makes a bizarre decision a mere 4 years late

IrelandOffline has been made aware of a long running Freedom of Information request dating back over four years and whose decision[1] has recently emerged from the desk of the Information Commissioner (OIC). It is a sad tale of delay, obfuscation and bizarre review procedures not worthy of a so-called modern democracy. One also has to question the reasoning of this decision.

Reasons why the information is important today

At the end of all this, 5 years later, the public still have no idea what information was used by the Department of Communications (DCENR) to select / deselect various areas for the National Broadband Scheme (NBS). The importance of 5 year old data might be a source of bemusement for some, but it should be noted that the very same Department is undertaking a similar exercise in 2013, supposedly to map out areas where state intervention may be required, so as to deliver a minimum speed of 30 Mb/s per premises by 2016. We do not want a repeat of the same fiasco that happened in 2008. How is excluding the one stakeholder that really matters, the public, from the National Broadband Plan, in the public interest. Are the public irrelevant?

Beginnings and the initial decision to release

The information originally requested was the underlying data used to map out the NBS in 2008. The DCENR refused the requests, the requester then sought a review at the Commissioner’s Office (OIC) and there began a very long saga.

We then fast-forward four years to February of last year and the OIC decided, in principle, to release the information, but in order to finalise matters, it sought the opinions of affected third parties – the broadband providers who had originally supplied the raw data to DCENR. From what we were made aware, the providers were, for the most part, either apathetic or generally in favour of release. Quite a few, we understand, decided not to reply at all and in doing so took the opportunity, specifically offered to them by OIC, to signal their consent by default.

Given the response of the providers, it finally looked like it was game-over for the department, except that something odd seems to have happened between March and May. The OIC on “considered” reflection, decided that the non-reply of some providers was no longer good enough. They queried the providers all over again; all of them, except that this time they allowed the DCENR to ask the questions. The department, which had been resisting the release of the information for nearly four years, emailed the providers asking them to think again. Those that were still in doubt about what their opinion should be, were given some additional persuasion by phone.

The about turn and “reasons” for refusal to release the information

Not surprisingly, opinions obtained from the providers by the department were quite different to those originally received by OIC. For good measure the DCENR staged an event for OIC investigators which was allegedly attended by members of the defence and security forces (in uniform we suppose) who opined darkly about the security of the state, the breakdown of law and order and the pandemic of metal theft that would ensue should the information be released.

Impressed by the providers’ miraculous change of heart and the ominous warnings from the defence forces, OIC did an about-face, decided instead to withhold the information and confirmed as much to the requester in a letter of preliminary finding . The requester protested, but to no avail. In a formal and binding decision, the Commissioner technically ‘varied’ the original decision of the department but in such a trivial way that DCENR’s original decision to refuse has effectively been ‘affirmed’.

In the decision document the Commissioner spends much time fretting about imagined security issues passed on to her, second hand, by technically incompetent staff. For a more adult, balanced and informed consideration of almost identical security issues we suggest reading the recent decision of the UK Information Tribunal[2], which, coincidentally, was issued the day before that of the OIC. The Decision of the UK Information Tribunal considers and rejects the entire raft of nonsense advanced by Ms.O’Reilly in her’s.

IrelandOffline believes that the OIC’s misuse of the citation of Section 23 the FOI Act and the ‘a la carte’ attitude to fair procedures are serious issues that ought to concern the Commissioner. The lack of technical expertise or even curiosity by the OIC staff ought also to concern the public, but what what is most important is the Commissioner’s view that there is no ‘Public Interest’ in release of the information. She notes only that “there may be a consumer interest in the individual maps, but [I] am not satisfied that th[at] equates to a public interest for the purposes of the FOI Act.”

Nearly everyone else disagrees. The European Commission which sanctioned the scheme, on the condition of an open public consultation, believe it is a matter of Public Interest. The program for Government makes clear that universal broadband connectivity is a matter of Public Interest. The 25,000 residences and businesses omitted in the mapping exercise might also think differently. They might think that they and their communities’ exclusion from basic affordable online facilities is very definitely a matter of Public Interest.

In light of what was at stake, the decision is inexplicable. We would urge the OIC to read the final decision of the UK Information Tribunal[2]regarding the security issues. We would then ask the OIC whether it was a fair and reasonable procedure for the OIC to deputise the DCENR and allow them (under the auspices of OIC) to pursue statements of objection from broadband providers when the OIC was already in possession of their uncoerced and confidential views. We would then ask the OIC to make a public statement on those matters.

In the meantime we congratulate those providers who agreed to release their information and we invite readers to view a development version of our forthcoming Broadband Map.[3]